It’s All in the Game
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Notes ...... 1 Playing the Game: An Introduction 1 C. Mackinnon, Toward a Feminist Theory of the State 237 (1989). My use of ‘‘game’’ is not to be confused with recent e√orts in the law-and-economics literature to deploy game theory as a method for understanding and influencing strategic legal behavior through mathematical modeling. See D. Baird, R. Gertner, and R. Picker, Game Theory and the Law (1994). 2 W. Shankly, Shankly 13 (1976). For anyone who wants to get a sense of this mania, see N. Hornby, Fever Pitch (1993), D. Thomson, 4–2 (1996), and A. Hutchinson, Kicking the Habit: Life, Football, and Other Mysteries (2000). For a good introduction to soccer, see P. Gardner, The Simplest Game: An Intelligent Fan’s Guide to the World of Soccer (1994). 3 J. B. Priestley, The Good Companions Bk. 1, ch. 1, 3–4 (1929). 4 Brown v. Allen, 344 U.S. 443 at 540 per Jackson J. (1953). 5 G. Eliot, Middlemarch 760 (M. Drabble ed. 1985). 6 Laker Airways v. Department of Trade, [1977] Q.B. 643 at 724 per Lawton L.J. See, generally, J. Frank, Courts on Trial: Myth and Reality in American Justice (1949), and R. Pound, The Causes of Popular Dissatisfaction with the Administration of Justice 12 (1962). 7 See H. L. A. Hart, The Concept of Law (2d ed. 1994). Some commentators have suggested that the contemporary history of jurisprudence amounts to little more than a series of extended footnotes, illustrative appendices, and critical commentaries on Hart’s The Concept of Law. One pundit went so far as to describe the first edition as ‘‘probably the best book in legal philosophy ever written.’’ J. G. Murphy, Kant: The Philosophy of Right 180 (1970). 8 See The Rule of Law: Ideal or Ideology? (A. Hutchinson and P. Monahan eds. 1986). 9 L. Steyn, Does Legal Formalism Hold Sway in England? 49 Current Legal Problems 43 at 58 (1996). See also R. Dworkin, A Matter of Principle 146 (1984). 10 P. Bobbitt, Constitutional Interpretation 24 (1991). While my chosen game is soccer, law has been profitably compared to other sporting activities. See Baseball and the American Legal Mind (S. Waller et al. eds. 1995). 11 T. Eagleton, Ideology: An Introduction 3 (1991). 12 The former tendency is illustrated by R. Dworkin, Law’s Empire (1986), and A. Altman, Critical Legal Studies (1990), and the latter tendency by S. Fish, Doing What Comes Natu- rally: Change, Rhetoric, and the Practice of Theory in Literary and Legal Studies (1989), and P. Schanck, Understanding Postmodern Thought and Its Implications for Statutory Interpretation, 65 S. Cal. L. Rev. 2505 (1992). For a general survey of recent jurisprudential